APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20230063
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: employer (not participating)
REPRESENTED by: n/a
HEARING: HEARING IN WRITING
HEARD by: J.L. Hughson, appeals resolution officer
ISSUES
The worker objects to the Case Manager’s (CM) decision dated December 14, 2022, which determined
- the worker was fit to perform their pre-injury job duties of Truck Driver, and
- the worker’s entitlement to loss of earnings (LOE) benefits from May 1, 2018, was denied.
BACKGROUND
The Appeals Resolution Officer’s (ARO) decision dated July 31, 2018, and the Workplace Safety and Insurance Appeals Tribunal’s (WSIAT) decision dated December 10, 2019, provide a thorough history of the claim. Therefore, I will not repeat it all here. In brief, on June 8, 2016, this Dump Truck Driver fell approximately four feet to the ground when coming out of their truck, landing on their right knee on the pavement. Following this, the worker’s left shoulder was grazed by a car going by. The worker’s claim was initially allowed for left shoulder and right knee injuries.
The worker discontinued working for their injury employer and found new employment performing the same type of work in September 2016. After a seasonal layoff from November 2016, the worker found new employment with another employer in April 2017.
Due to ongoing issues in their right knee, the worker had an MRI completed on June 21, 2017. This showed a right knee medial meniscal tear. In their decision dated September 5, 2017, the Eligibility Adjudicator (EA) stated the worker’s claim was originally allowed for a right knee abrasion and soft tissue injury, and a left shoulder soft tissue injury. The EA denied the worker’s entitlement to benefits for a right knee meniscal tear. This decision was upheld by the ARO on July 31, 2018.
The worker underwent right knee arthroscopic surgery on January 4, 2018. They returned to work after surgery, performing their regular job duties as a Truck Driver, on May 1, 2018.
In the WSIAT decision dated December 10, 2019, the Tribunal allowed the worker’s claim for entitlement to the June 2017 recurrence, including a tear of the worker’s right medial meniscus.
In their decision dated December 14, 2022, the CM implemented the WSIAT decision. The CM determined that the worker reached maximum medical recovery (MMR) with a permanent impairment as of June 1, 2018, and that the worker had demonstrated their ability to return to their pre-injury job duties as a Truck Driver from May 1, 2018, until the worker went on maternity leave in July 2020. The CM allowed full LOE benefits from January 4, 2018, to April 30, 2018, inclusive, with no entitlement to LOE benefits from May 1, 2018.
The worker objects to the decision dated December 14, 2022, and this issue is now before me.
AUTHORITY
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
January 2, 2018
19-02-07 RTW Overview and Key Concepts
April 9, 2021
Adjudicative Advice Document: Practice Guidelines for Ordering LOE Benefit Arrears under WSIA [Workplace Safety and Insurance Act, 1997], March 1, 2002
The above-noted policy versions were in effect as of the date of the entitlement period under review and/or the date of the decision in dispute, as applicable.
ANALYSIS
I find the worker’s pre-injury job duties of Truck Driver are not suitable. The worker is entitled to LOE benefits from May 1, 2018, to the date of maternity leave in July 2020, based upon the difference between their actual earnings during this period and their pre-injury earnings. The worker is entitled to RTW services, including a RTW assessment. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
In their submission, the WR stated the worker should be paid LOE benefits from May 1, 2018, as the worker’s pre-injury job duties as a Truck Driver were not suitable.
The employer did not indicate they would participate in this appeal and did not provide a submission on this issue.
1. Suitability of pre-injury job duties
Level of impairment from May 1, 2018
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review) states in part that
If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process…
In the orthopaedic surgeon’s follow-up consultation report, dated April 27, 2018, they noted that the worker had very good range of motion in their right knee, and their surgical scars were well healed. They stated the worker was planning to go for a drive test sometime that week and was ready to go back to work. In the surgeon’s next follow-up consultation report, dated June 1, 2018, they stated the worker had been working since May 1, 2018, driving the dump truck for 11 to 12 hours per shift. They stated that the worker
…still complains of swelling and numbness on [their] right leg after working for 2 hours. [The worker] does not complain of back pain. [They are] only able to bend comfortable [sic] to no more than 120 degrees and is doing all kinds of exercises to improve range of motion.
They went on to note that the worker had a little bit of muscle wasting on their right leg, and recommended the worker use a Kneehab brace, in addition to continuing with their range of motion and strengthening exercises.
In their assessment report, dated March 8, 2021, the physiotherapist identified that the worker experienced numbness and tingling in their right knee and down into their right foot when sitting for more than 10 to 20 minutes. The worker was limited with many activities of daily living, although these limitations were not specified. The physiotherapist stated the worker used to enjoy biking, and running/jogging, but was unable to do these activities due to limited range of motion and pain. Further, the worker was only able to do yoga at 50% of their pre-injury ability due to pain, limited range of motion, and limited strength. The physiotherapist made the following functional findings:
- Able to tolerate lifting from floor to waist up to 20 pounds, but unable to use appropriate form due to limitations with knee range of motion and strength
- Walking limited to 20 minutes before a break is needed
- Very limited going up and down stairs; can do this for single flights at a time, and only if they lead with their left leg
- Unable to kneel
- Sitting tolerance is 20 to 30 minutes without a change in position due to knee pain
The physiotherapist also identified that the worker’s knee flexion was limited to 125 degrees.
Given the above, I find the accepted temporary restrictions for the worker’s right knee from May 1, 2018, which I accept as permanent as of the date of MMR, June 1, 2018, are as follows:
- No ladder climbing
- Stair climbing limited to one flight a time, with access to a hand rail
- No kneeling
- Sitting limited to 20 to 30 minutes with opportunity to change position/stretch right knee
While I acknowledge the worker is unable to use appropriate form when lifting from floor to waist up to 20 pounds, the physiotherapist did not specify at what weight the worker could lift safely. Therefore, I make no finding regarding the worker’s lifting restrictions or abilities. I leave a decision regarding the worker’s lifting abilities to the operating area to determine upon collecting additional medical information.
In their decision dated December 14, 2022, the CM stated the worker had demonstrated their ability to return to their pre-injury duties as a Truck Driver. However, the claim file information supports that the worker struggled after returning to work on May 1, 2018. As noted above, the surgeon’s report dated June 1, 2018, identified the worker was experiencing numbness and swelling after working for two hours. Additionally, in a co-worker’s (P.D.) witness statement, dated August 2019, they said the worker continued to have difficulties with their knee:
Often times, [the worker] suffers from daily knee pain, numbness & swelling in [their] right leg and also has difficulties sitting for any length of time. [The worker] complains of the pain a lot and has to get out of the truck to stretch and walk around to alleviate the irritation.
The worker described in their written statement dated January 30, 2023, that although they struggled in performing their regular job duties, they continued working after the surgery because they could not financially afford not to do so.
Based on the above, I disagree with the CM’s determination that the worker demonstrated the ability to perform their pre-injury job duties after returning to truck driving on May 1, 2018. The medical information, worker’s statement, and witness statement all confirm that the worker experienced significant difficulties in performing their pre-injury job duties. At the time the worker returned to work post-surgery, they were not receiving any LOE benefits from the WSIB, as the worker’s entitlement to benefits had been denied and would not be allowed until the WSIAT decision dated December 10, 2019. Although the worker decided to return to truck driving after the surgery, I do not accept that this means the worker was able to safely perform the job duties.
Suitability of pre-injury job duties
There are limited details available on file regarding the worker’s pre-injury job duties as a Truck Driver. As described in the WSIAT’s decision, dated December 10, 2019, the worker’s pre-injury job duties required them to drive a manual transmission truck. In the Employer’s Report of Injury (Form 7), dated June 10, 2016, they noted that the worker was climbing down the stairs of their tri-axle truck when their injury took place. In the witness statement, dated October 2019 by R.J., the witness stated that they first met the worker in the spring of 2016, when the worker was the driver of a Mack tri-axle dump truck.
The worker provided a written submission, dated January 30, 2023, as part of their appeal. In it, the worker stated that they were no longer able to perform their regular job duties as a Truck Driver because
I am in the worst pain and experience the most numbness while driving. When in heavy traffic and using the brake with my right leg, or when people cut me off and I have to slam on the brakes with my right leg it really bothers my knee and results in inflammation and immense pain.
Climbing up and down the truck to get into the cab is rather difficult as well because of the steepness of the steps and the lack of range of motion in my knee, I cannot get into most trucks without struggling and having difficulty now.
My strength isn’t the same anymore either as I don’t have a strong right leg so some tasks with the truck like chaining the tires, tying down loads securely and getting under the truck to inspect it daily for leaks or other issues is extremely hard and next to impossible for me.
In the absence of a specific description of the worker’s job duties, I accept that their pre-injury job duties included driving a manual transmission Mack tri-axle dump truck, which required the worker to climb up and down the stairs to enter or exit the vehicle and remain seated for prolonged periods of time. The worker used at least their right leg in operating the pedals, and would need to tie down loads, chain the tires, and perform daily safety checks on the vehicle which included inspecting underneath the truck.
Policy 19-02-07, RTW Overview and Key Concepts, states in part that
Suitable work means post-injury work that is safe, productive, consistent with the worker's functional abilities, and that restores the worker's pre-injury earnings, to the greatest extent possible.
I find the pre-injury job duties of Truck Driver are not suitable as provided in policy 19-02-07, as they are not consistent with the worker’s functional abilities. The worker is unable to sit for longer than 20 to 30 minutes without needing to change positions; they are unable to perform daily safety checks on the vehicle and other duties, including tying down loads; and, they are unable to climb the steps to enter/exit the cab of the vehicle.
2. Entitlement to LOE benefits from May 1, 2018
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review) states in part that workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits. Examples include but are not limited to:
- workers who return to work at reduced hours or wages, and
- workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre-injury average earnings.
The Adjudicative Advice Document: Practice Guidelines for Ordering LOE Benefit Arrears under WSIA, states in part that
Partial LOE (equivalent to 85% of the difference between the pre-accident earnings and the current, post-accident earnings) is payable where an impairment exists that prevents the worker from returning to pre-injury employment and no suitable employment has been offered to the worker, but the worker has found a job and is currently earning. Where the worker has attempted to mitigate the wage loss by actually finding a job, current earnings will be used. An LMR assessment may or may not be ordered depending on such factors as whether the worker has a PI and the significance of the partial LOE.
I find the worker is entitled to LOE benefits from May 1, 2018, to the date the worker began maternity leave in July 2020, as provided in policy 18-03-02, based upon the difference between the worker’s pre-injury and actual earnings. During this period, the worker continued to work as a Truck Driver despite this job not being suitable, for financial reasons. I limit the worker’s entitlement to LOE benefits to the date the worker began maternity leave, as I find the worker was no longer losing wages as a result of their work-related injury as of this date.
The claim file information supports that the worker worked from May 1, 2018, to approximately July 2020. Tax information is available for 2018, 2019, and 2020. Based upon the worker’s long-term earnings rate, as calculated in a memo, dated December 6, 2022, it appears the worker was at a wage loss for these years; however, there are additional factors to consider, including but not limited to the LOE benefits already paid from January 4 to April 30, 2018, inclusive, and the worker’s maternity leave. Therefore, I leave it to the operating area to determine the amount of LOE benefits the worker is entitled to for the period of May 1, 2018, to in or around July 2020, including the determination of the exact date the worker began their maternity leave. It is possible that for some time periods the worker’s LOE benefit could be calculated at $0 if their actual earnings were higher than or equal to their pre-injury earnings.
As part of the WR’s submission, they noted that the worker was interested in having the WSIB’s assistance in finding a suitable position. I find the worker is entitled to Return-to-Work (RTW) Services, including a RTW assessment, as described in the adjudicative advice document and policy 19-02-07. While the worker did mitigate their wage loss by continuing to work as a Truck Driver, this work is not suitable for their compensable right knee permanent impairment, and therefore a suitable occupation must be identified.
CONCLUSION
The worker’s objection is allowed.
- The worker’s pre-injury job duties of Truck Driver are not suitable. The worker’s permanent restrictions for their right knee permanent impairment are:
- No ladder climbing
- Stair climbing limited to one flight a time, with access to a hand rail
- No kneeling
- Sitting limited to 20 to 30 minutes with opportunity to change position/stretch right knee
- The worker is entitled to LOE benefits from May 1, 2018, to the date of maternity leave in July 2020, based upon the difference between their actual earnings during this period and their pre-injury earnings. The worker is entitled to RTW services, including a RTW assessment, in order to identify a suitable occupation.
I leave the nature and extent of benefits to the operating area to determine.
DATED March 30, 2023
J.L. Hughson
Appeals Resolution Officer
Appeals Services Division